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Litigating Without a Lawyer

Litigating Without a Lawyer. Minerva Camp and Christopher Elmore Camp & Elmore, LLC. Preliminary Steps. Anticipate every claim will go to litigation Obtain from Worker Recorded Statement (keep audio and transcribed)

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Litigating Without a Lawyer

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  1. Litigating Without a Lawyer Minerva Camp and Christopher Elmore Camp & Elmore, LLC

  2. Preliminary Steps • Anticipate every claim will go to litigation • Obtain from Worker • Recorded Statement (keep audio and transcribed) • Hobbies, education level, interests, small children, ADL’s inquire, job description (for DOT SVP determination) • Secure every possible method of contact (phone, cell, email, etc.) • Prior WC Claims • Is there anyone else in the household on disability? • Criminal, educational, previous job duties (10+ years)

  3. Preliminary Steps • Obtain from Employer • 7 months of gross wages, broken down by pay period (actual records, not form) • Confirm there was not a concurrent employer • Personnel file: I9, relevant SOPs/Policies/Procedures • Job description or confirmation of DOT descriptions • Supervisors/Witnesses contact information • Bankruptcy is real – get everything

  4. The Paper Trail • Send proper Howell letter • Cite the statute • Confirmatory letters are insufficient • Certified mail AND other methods if possible • Benefit Explanation • Give Ombudsman info in ALL letters • Keep signed copies, not just word-processed versions. Also keep return receipt of certified mail

  5. Paying Benefits • Use the actual wage records to calculate AWW/CR • Pay what you think you owe • Don’t pay benefits based on the best case, unlikely scenario • (you don’t have to assume the worst either) • Failure to pay means more “benefit” will be obtained by Worker attorney in fees • Reservation of rights letters to approve one or two medical visits make ER/INS look more reasonable

  6. Complaint Filed • Prepare for Mediation • It can be done without a lawyer in many cases • Send mandatory production to Worker and Mediator • Include wage records, pertinent medical, correspondence with additional Howell copies, job description, and DOT description • One page memo outlining issues for your use • “ In good faith Employer attaches all mandatory production documents in their possession consistent with 11NMAC 4.4.10 that are related to known defenses against Worker’s expressed claims as indicated below through separate correspondence due to volume and reserves objections to the production of privileged information and documents:”

  7. PPD and Modifiers • Utilize the job description and DOT to determine proper SVP • http://www.occupationalinfo.org/ • Look to job application for education level • See if employer can accommodate • In-writing job offer, signed by W or via certified mail with deadline for acceptance • Terminated for cause? (unrelated to accident) • Who made the hire/termination decision?

  8. Loss of Use • Be willing to reasonably settle at mediation • Loss of use is a crapshoot • Guesstimation method No. 1 • 3x the IR

  9. Loss of Use Cont’d • Guesstimation Method No. 2 • Modifier formula • Convert your LOU to the whole body • 0% IR does not mean 0% LOU Lucero v. Smith’s Food & Drug Centers, Inc., 118 N.M. 35, 878 P.2d 353 (Ct. App. 1994) • Loss of function (RTW and ADL’s) is the crux

  10. Settlement Strategies • Find the driving force • Does he hate his job? Revenge? • Spouse disabling the worker? Desire to relocate? • Money? Needs childcare? Desire to retire? • Anticipated layoff? Spouse retiring? • Once you find the motive, easier to find solution • Quick settlement before mediation, representation, or even significant treatment

  11. Settlement Strategies • It’s OK to Make the first offer • Especially with pro se Workers • Not a tort claim • BUT Don’t bid against yourself • If you have a settlement LOCK it in with a hearing • If rejected RR, offer of judgment (yes you can do this yourself) • Makes attorneys reconsider cost of litigation, especially in LOU cases

  12. When to Contact an Attorney • Worker has hired unreasonable counsel • Many Worker’s attorneys are flexible, open and gasp “reasonable”- believe in yourself, document by confirming ltrs & your adjuster notes • When it becomes overly-complicated • If moves much beyond mediation • Minor Settlements/Death Cases/Right of Reimburse • If Worker is accusatory pre-litigation • Reached agreement, refer for quick settlement document drafting

  13. THANK YOU www.campelmore.com

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